Once Again, Court Says Homeland Security Is Free To Seize & Search Your Computer Without A Warrant At The Border

from the bad-rulings dept

We've noted, repeatedly, how troubling it is that customs seems to feel no duty to obey the 4th Amendment at the border, and that the courts have allowed this. It's even worse when it comes to searching digital devices, such as laptops. As we've explained before, what you have access to via your laptop is entirely different than what you pack in a suitcase for entering the country:

You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include. With a suitcase, you specifically choose what to include.

The reason you bring the contents on your laptop over the border is because you're bringing your laptop over the border. If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.

And this becomes even more ridiculous in the era of cloud computing, where a drive may be mounted over the network, and thus never actually cross the border at all -- and yet, Homeland Security seems to think it has the right to search all of this, and the courts have mostly agreed.

And, once again, we have yet another appeals court ruling that says this is fineeven if the laptop is taken away from the customs station and brought into the country. We've had similar rulings in the past, and this one involves laptops that were taken away from the border and brought to another location, 170 miles away, where they were searched. The lower court said this evidence could not be used, but the appeals court reinstated the evidence, claiming that tossing out such evidence "would only reward those individuals who, either because of the nature of their contraband or the sophistication of their criminal enterprise, hide their contraband more cleverly or would be inclined to seek entry at more vulnerable points less equipped to discover them."

But that makes no sense. I mean, if you're good at hiding your "contraband" that's already true. Nothing about this ruling changes that. All this ruling does is say that it's okay for border officials from Homeland Security to search through your stuff without reasonable suspicion. It's not about rewarding people who better hide things, it's about the basic requirement of the 4th Amendment that there be probable cause before the government can take your stuff and search it. Only the dissenting judge seemed to recognize this basic issue in the ruling, which is embedded below, noting: "I add my voice to the chorus lamenting the apparent demise of the Fourth Amendment."

The majority ruling claims that it's not setting up an "anything goes" situation at the border, but it's difficult to see how it's placed any limits at all on Homeland Security. It claims that it's fine to search laptops at the border, because Homeland Security and ICE have a compelling reason to keep material out of the US that it doesn't want crossing the border. But, when it comes to digital content, that's just silly. No one is crossing the border with a laptop to "get content into the country." They can do that using the internet just fine. Claiming that searching the contents of a laptop are like searching a suitcase is as if you are technically illiterate.

Of course, since this is a child porn/child abuse claim, it's easy to say that it's a "good thing" that the search caught this guy -- which it did. And I'm happy he was eventually arrested. But I'm still troubled with how the evidence was collected, and anyone who crosses the border with their computers should be equally concerned. Don't let the fact that this case was about child pornography detract from the important issues about your own privacy rights concerning information stored on a laptop.

Reader Comments

The Government's Search Powers

The government's search powers are at their very highest at the border. I agree that it's stupid to worry about the hand-carry of digital information into the US, but I'm not sure laptop content searches being a stupid practice necessarily makes them illegal searches or seizures.

Re: The Government's Search Powers

Searches at the border get leeway wrt "probable cause" because it's a "special case".

Specifically, you're about to enter the country and the gov't cares what you bring in.

However, this does not pertain to data. Data can be "imported" much easier via the internet than hand-carrying storage devices across borders. So what's the justification for the search without probable cause?

It's analogous to setting up a border checkpoint on a footpath while ignoring the highway 20 feet away, in order to prevent people on foot from bringing in contraband. It's not secure, not likely to stop any illegal data, and simply a means to poke around in people's stuff.

Re: Re: Re: The Government's Search Powers

But the leeway granted in regards to 4th amendment is granted for a reason: "We are stopping X".

If the approach is laughable(not even "middling" or "bad", but, as in this case, absolutely idiotic) in terms of stopping X, why is the leeway granted? For what is the infringement on 4th amendment allowed?

Re: Re: Re: Re: The Government's Search Powers

The government is usually not required to prove that their solution is the best solution or even that it will actually work, just that it could work. They catch people with digital contraband in these searches from time to time, so it does work in some cases, even if there's a million times as much stuff streaming in through the net.

Furthermore, I'm not sure how much the 4th amendment comes into play, here (honestly, I don't know; I'm not familiar with the case law). It seems to me, however, that if you want to import an item into the US, you play by the rules to get it in. I would absolutely support someone's right to decline to have their laptop searched at the border, with the understanding that they must then leave that laptop outside the country.

Re: Re: The Government's Search Powers

However, this does not pertain to data. Data can be "imported" much easier via the internet than hand-carrying storage devices across borders. So what's the justification for the search without probable cause?

It does, however, have the really cool and neat effect of increasing "The Fear" in the general populace by using a horrible stretching of existing legislation under the guise of, "Think of all the raporists and kiddie fondlers and terrorists and seal clubbers and flag burners and bad things this stops! There's millions of them out there people it's not safe you know!"
Leave to simmer a while and you'll soon be able to justify another "completely necessary" extension of the "Patriot" Act. It's great isn't it?

Re: Re: The Government's Search Powers

Searches at the border get leeway wrt "probable cause" because it's a "special case".
...
Data can be "imported" much easier via the internet than hand-carrying storage devices across borders. So what's the justification for the search without probable cause?

This is just the first step in a plan. The next step is for the gov't to next declare that internet access points are border entryways. Then it can search any internet capable computer without a warrant, because it's a "special case" and the bill of rights won't apply to special cases.

Re: The Government's Search Powers

> The government's search powers are at their
> very highest at the border.

Problem is, the government is constantly redefining and expanding "the border". It currently stands at something like 150 miles inland from the actual physical border. So technically, the entire state of Florida has become "the border" and the 4th Amendment has been suspended within the entirety of the state.

Re: Re:

Perhaps I should even hide it in my socks, and I'll make sure I haven't washed them in a while for good measure ;)

I mean, seriously, with the container size of digital information these days, can they possibly search every micrometer of every passenger for infringing content? Is it worth society paying them to do to this, a payment that's basically a subsidy to the 'entertainment industry'?

Re:

Cleverness

tossing out such evidence "would only reward those individuals who, either because of the nature of their contraband or the sophistication of their criminal enterprise, hide their contraband more cleverly or would be inclined to seek entry at more vulnerable points less equipped to discover them."

Whilst what they are doing still rewards those who are just a little bit cleverer. Their standard of "clever" is a bit low imho.

Most large companies now have a supply of "clean laptops" for staff to use when travelling - because of these ill-advised measures.

Eventually this will backfire.

What this will do is cause people to store their content in the cloud with a connection that requires login with every use. Then just don't give the PW to the DHS. Another option is full disk encryption, which again will keep the DHS from seeing what you have. Eventually countermeasures will become common place and then what will the DHS do?

Re: Eventually this will backfire.

This was close to my question when I read this. I use a CR-48 laptop which only contains the Chrome operating system. All of my information is stored 'in the cloud', be it Google, Dropbox, or my own server. I wonder how this ruling would affect me if I were to cross a border.

Re: Eventually this will backfire.

Eventually countermeasures will become common place and then what will the DHS do?
Demand passwords, access and other things far in violation of good sense, constitutionality and/or usefulness - and by not giving them up, deny you access to the country even if you are a citizen.

Smart cars

Now that cars have become smarter, and have the ability to store different kinds of data, will the DHS seize your vehicle and transport it 170 miles away to do a forensic search? Will they give you a ride home?

Re:

What happens if you have an encrypted drive and refuse to give your password to border patrol?

Does anyone know?

it happened to a friend of mine. she was pulled out of line and asked to boot her laptop, which was encrypted, and she refused to give the key. they took her laptop for 15 minutes and gave it back without a word.

her suspicion was that someone installed a hardware keylogger on it, but i doubt it, given that they only had it for 15 minutes and the disparity of keyboard connectors inside of laptops. i could be wrong, but keeping a store of loggers onsite at every major airport seems like a logistical nightmare.

i suggested she plug it in to a private network segment with a bunch of monitoring tools as a research project, but she declined.

i hope my laptop gets similar treatment when i travel to defcon this year specifically so i can research it.

Re: Re:

her suspicion was that someone installed a hardware keylogger on it, but i doubt it, given that they only had it for 15 minutes and the disparity of keyboard connectors inside of laptops. i could be wrong, but keeping a store of loggers onsite at every major airport seems like a logistical nightmare.

Another good reason why users should be familiar with the internals of their system.

Confused.

If a US agent is inspected a US citizen's laptop, how is this *not* covered under the 4th Amendment? Presumably the US agent is acting on behalf of the citizen's government, and therefore should be adhering to rules and regulations of that government. I don't see how the physical location of this inspection makes a difference, since it is primarily *the activity* that is being managed by the 4th amendment.

In other words, the courts are wrong, as usual, and continue pushing our people to the brink of outright revolt. Assuming we can get off of our couches to actually do that.

Re: Confused.

"I don't see how the physical location of this inspection makes a difference, since it is primarily *the activity* that is being managed by the 4th amendment."

The Constitution doesn't apply outside the country... for example if you go to China you can't pull out the 1st amendment.

US Border agents are searching you / your belongings BEFORE you enter the country. Even if your over the physical line, they will say "Sir you understand that you are not actually inside the country yet". This is how they are allowed exemptions to the Constitution, once they grant you access into the US, then you are granted US protections.. like the 4th amendment. Not saying I agree with the methods/reasoning, but thats how its been all my life. Now they are just testing to see how much they can get away without getting in trouble.

Re: Re: Confused.

once they grant you access into the US, then you are granted US protections.. like the 4th amendment.

Not always the case these days, but there is a simple enough fix. If you are currently located in the U.S. and live within 100 miles of the border, make sure you don't own a computer, digital camera, mp3 player, smartphone, drive a car, look / sound foreign, use fire, electricity, water or the wheel, and your constitutional rights should be safe. (At least until the time they decide to extend the "internal border" definition again to include where you live and work.)

Re: Re: Confused.

US Border agents are searching you / your belongings BEFORE you enter the country. Even if your over the physical line, they will say "Sir you understand that you are not actually inside the country yet". This is how they are allowed exemptions to the Constitution, once they grant you access into the US, then you are granted US protections.. like the 4th amendment.

If that's the case, then the border agents shouldn't have any authority to search you, since that would be operating outside the US. If you're not yet in the US, then agents of the US government shouldn't have any authority over you.

The Cloud is not the answer

Surely by now all the cloud providers have been served with NSLs compelling them to turn over all data and all passwords. So it's a good bet that anything stored there is already in the hands of the government.

Re: The Cloud is not the answer

Surely by now all the cloud providers have been served with NSLs compelling them to turn over all data and all passwords. So it's a good bet that anything stored there is already in the hands of the government.

strong crypto also works in the cloud. your networked data drop (dropbox, amazon s3, etc.) can store files up to a given size, so i keep a couple of truecrypt volumes stored online. there are limits to file size of course. for example, DB has a limit of 300 meg for individual files.

Please read at least the first 4 pages before crying police state (which I'm inclined to do anyway).

Understand that the border patrol guy brought up the defendants file and saw criminal convictions for 7 counts of sex crime involving minors with explicit instructions to be "on the lookout" for child pornography. It was this directive that triggered the secondary inspections.

With this in mind it is not hard to see how the judges, presumably semi reasonable people, found the way they did in *this case*.

IANAL but were this particular suspect picked up in a routine traffic stop with a laptop in the car, he could well have ended up in the same place.

And I don't think that this case forms any kind of precedence for *random* search and/or seizure of electronic equipment.

But the question of the validity of the search/seizure, as examined by the judges in this case is not the interesting question.

For me, the interesting question is should all police / border people have electronic access to all intelligence ever gathered about you? To use against you in any way they seem fit?

Re:

> IANAL but were this particular suspect picked
> up in a routine traffic stop with a laptop in
> the car, he could well have ended up in the
> same place.

Not without a warrant, he wouldn't have. Merely having a criminal history and being in possession of a laptop wouldn't come close to meeting the probable cause standard a regular cop would have to meet before a judge would issue a search warrant for the device.

That's the whole point. These border cops have somehow been allowed an exemption from the entirety of the 4th Amendment, despite the fact that the Constitution itself contains no such exception. If a judge can completely "interpret away" the 4th Amendment at the border, why can't they do it for other places as well?